R v Eimerl [2015] ACTSC 72

Crimes Act 1900 (ACT) ss 34, 116 (3)

R v Barbour (unreported, Supreme Court of the ACT, Burns J, 20 November 2013)

R v Dalton; R v Fleet (unreported, Supreme Court of the ACT, Murrell CJ, 28 April 2014)

The Queen v Hatzis (unreported, Supreme Court of the ACT, Nield AJ, 4 September 2012)

R v Scanes (unreported, Supreme Court of the ACT, Murrell CJ, 13 December 2013)

Legal Aid ACT (Offender)

SCC 270 of 2014; SCC 271 of 2014

1. James Eimerl, you have pleaded guilty to one offence of forcible confinement contrary to s 34 of the Crimes Act 1900 (ACT), one offence of damaging property contrary to s 116 (3) of the Crimes Act 1900 and one count of theft contrary to s 308 of the Criminal Code 2002 (ACT). The maximum penalty for the offence of forcible confinement is 10 years' imprisonment whilst that for the offence of damaging property is two years imprisonment. The maximum penalty for the offence of theft is 10 years' imprisonment.

2. An Agreed Statement of Facts was provided to the Court which I will not here recite. It is sufficient to note that on 15 July last year, you forcibly confined your mother in her home in Forrest in the Australian Capital Territory. During the course of her confinement you damaged a heater and a wooden cedar door. You later fled the house and took your mother's phone with you. The confinement lasted about two hours and was accompanied by threats of violence to your mother and threats to damage to property together with abuse directed towards your mother. Your actions caused considerable distress to your victim, who described herself as being terrified by your actions. Your anger was based on your belief that your parents were communicating with Corrective Services, putting in jeopardy your parole order at that time. Your parents had in fact been in contact with Corrective Services because of their concern, well founded as it turned out, that you had resumed illicit drug use.

3. As I have already noted, you were on parole at the time of committing these offences. This was in relation to a sentence imposed by Justice Penfold on 6 February 2012 for an offence of aggravated robbery. You were also dealt with on the same day for two breaches of court orders.

4. A warrant was issued in the Magistrates Court on the 21 July last year for your arrest. On 2 August last year, you came before the Court as a result of being arrested in accordance with a Sentence Administration Board warrant. You were charged with the offence of forcible confinement, common assault and property damage. Bail was not applied for and you were remanded in custody. On 5 August last year, the Sentence Administration Board cancelled your parole order and remitted you to full time custody for a period of one year and eight months, being the period from 5 August last year until 4 April 2016.

5. A plea of guilty was entered to the charge of forcible confinement on 21 October 2014. A plea of not guilty was entered to the charge of common assault. The matter was then adjourned to 18 November for a brief of evidence to be prepared. On that date, you entered a plea of guilty to the charge of property damage and you were also charged with committing theft, to which you entered a plea of guilty. The charge of common assault was withdrawn and the matter was committed to this Court for sentence.

6. I note that you are 23 years old and that you had a safe, supportive childhood, despite which you have chosen a criminal lifestyle based on illicit drug use. You have a very substantial criminal history, disentitling you to any leniency in these proceedings. Records within the Alexander Maconochie Centre (AMC) depict you as being non-compliant and difficult in custody. You also have a history of breaching community-based orders. I do note that, in 2012, you completed the Solaris programme in the AMC before being paroled on 30 September 2013. Your initial response to parole supervision was satisfactory and urinalysis results were negative. You reported to Corrections as required and you obtained and maintained employment. As a result, supervision and urinalysis were decreased over a period of time.

7. In mid-July 2014 your parents contacted Corrections and indicated their belief that you had returned to illicit drug use. You accept that you were using methamphetamine at that time but you were able to return clean urinalysis because you knew when you would be required to provide a urine sample and you timed your drug use to avoid returning a dirty sample.

8. You advised the author of the Pre-Sentence Report that you commenced using methamphetamine in 2011 when you would have been 19 or 20. You ceased use in the AMC during your incarceration in 2012 and 2013, but clearly resumed its use within months of release in September 2013. I note that you blamed your relapse on a breakup with your girlfriend. I note and take in to account in your favour that you have indicated a desire to again undertake the Solaris programme whilst in custody.

9. You indicated little remorse for your offending to the author of the PreSentence Report. You attempted to minimise your own responsibility for these offences, blaming drug use, your girlfriend and your parents. You indicated a belief that your parents betrayed you. You apparently cannot see that what they did was out of love for you and concern that you were destroying yourself. It took strength and courage to approach Corrections on the part of your parents but you appear to be too preoccupied with yourself and your own wants to recognise that fact. Remarkably, you still have some support from your parents although understandably they are now guarded in this support. You have been assessed as a medium to high risk of reoffending, an assessment with which I agree. This risk may of course be reduced by addressing your drug use and also your attitude.

10. I have been provided with transcripts of a number of prior sentences imposed in this Court for offences of forcible confinement. In R v Hatzis (unreported, Supreme Court of the ACT, Nield AJ, 4 September 2012), a sentence of four years and nine months reduced from five years for a plea of guilty was imposed for a more serious offence example of this type of offending.

11. In R v Scanes (unreported, Supreme Court of the ACT, Murrell CJ, 13 December 2013) a sentence of two years and three months was imposed, of which three months was to be served by way of periodic detention with the remainder suspended. The confinement in that case was only 20 minutes but was accompanied by some violence. The offender had a history of mental illness connected with drug and alcohol abuse. The victim was his cousin and the expressed motive for the offence was his desire to stop the victim, who he believed was using illicit drugs, from being with her abusive boyfriend.

12. In R v Dalton; R v Fleet (unreported, Supreme Court of the ACT, Murrell CJ, 28 April 2014) the offenders committed a more serious example of this type of offending, confining the victim for more than 20 hours and heavily drugging him. One of the co-offenders, Dalton, was sentenced to 3 years and 10 months' imprisonment, reduced from 4 years and 6 months for a plea of guilty. The other co-offender, Fleet, was sentenced to four years and three months' imprisonment, reduced from five years for a plea of guilty.

13. In R v Barbour (unreported, Supreme Court of the ACT, Burns J, 20 November 2013) there was only momentary confinement and a Good Behaviour Order for a period of 18 months was imposed.

14. In R v Hatzis, Nield AJ said, at [40], that the circumstances relevant to an assessment of the objective seriousness of an offence of unlawful confinement are:

(a) first, the length of confinement;

(b) secondly, the purpose of confinement;

(c) thirdly, the extent of fear instilled in the victim by and during the confinement; and

(d) finally, any injuries inflicted upon the victim.

15. I note, as I have said, that on this occasion the confinement was for a period of some two hours. The purpose of the confinement, I am satisfied, was out of anger and a sense of betrayal on your part that your parents had contacted Corrective Services. I am satisfied that a significant degree of fear was instilled in your victim during the course of this confinement, however, no injuries were inflicted on the victim.

16. I take into account that you are still reasonably young and that rehabilitation is still an important sentencing consideration, but your prospects for rehabilitation must be considered guarded. It is a positive sign that you were able to obtain employment after your last period of imprisonment and that you were apparently highly regarded by your employer before you relapsed into drug use.

17. I take into account that this is a family violence matter. That is relevant because the only reason that you were able to commit this offence was because of the relationship of trust that existed between you and the victim. If you had not been a family member who was loved and trusted by your victim you would not have had the opportunity to commit this offence. I also note that the offence occurred in the victim's own home, where she should have been entitled to feel safe.

18. Offences of this nature call for sentences reflecting the need for general deterrence, and in this particular case any sentence must also contain a strong element of personal deterrence.

19. I take into account your plea of guilty, which I accept was a reasonably early plea of guilty with respect to these offences. I accept that your pleas have utilitarian value and, in particular, have saved the victim from having to give evidence. I note, in balancing that consideration, that the prosecution case was very strong and also that your pleas do not reflect a great deal of remorse. Nevertheless, I will reduce by approximately 20 per cent of the sentences that I would otherwise have imposed in order to mark your pleas of guilty.

20. I note that you have been in custody since 2 August last year, after your parole was revoked. Only the period from 2 August to 4 August directly relates to the current offences. The period after 4 August reflects a period when you were a serving prisoner as a consequence of the Sentence Administration Board revoking your parole. Nevertheless, I must consider the question of totality in imposing sentences today and determine to what extent the sentences I impose today should be made concurrent with the sentences that you are currently serving. It is not, however, in my opinion, appropriate that the current sentences should be backdated to the date that you were taken into custody on 2 August last year. I do accept that all offences occurred as part of a single course of conduct, and therefore it is appropriate that there be a high degree of concurrency between the sentences which I impose today.

21. With respect to the charge of unlawful confinement, you are convicted and sentenced to two years and one month's imprisonment, which I have reduced from two years and nine months in order to reflect your plea of guilty. That sentence will commence on 12 March 2015 and expire on 11 April 2017.

22. With respect to the offence of damaging property, you are convicted and sentenced to four months' imprisonment, commencing on 12 January 2017 and expiring on 11 May 2017.

23. With respect to the offence of theft, you are convicted and you are sentenced to two months' imprisonment, concurrent with the sentence for damaging property which I have just imposed.

24. I set a non-parole period expiring on 11 January 2016.

I certify that the preceding twenty-five [24] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.